0

SUPREME COURT HAS SET ASIDE GUJRAT HIGH COURT JUDGEMENT AND RELEASED THE ACCUSED FOR THE OFFENCE OF ROBERRY & MURDER

Articles, Supreme Court , , , , , , , , , , ,

CASE NAME: THAKORE UMEDSING NATHUSING V. STATE OF GUJARAT
CASE NUMBER: CRIMINAL APPEAL NO.1102 OF 2024

DATED ON: FEBRUARY 22, 2024
QUORUM: Honourable Justice B.R. Gavai & Justice Sandeep Mehta

FACTS OF THE CASE:

The appellants, Thakore Laxmansing Halsing, Thakore Pravinsing Rajsing, Thakore Umedsing Nathusing, Thakore Khemsing Halsing, and Thakore Prabhatsing Kapursing, were tried in Sessions Case Nos. 107 and 143 of 1990 respectively. They were convicted under Section 392 of the Indian Penal Code, 1860 and sentenced to 10 years’ rigorous imprisonment with a fine of Rs. 5,000/­. The trial court acquitted them of the charges under Sections 302 read with Section 34 and Sections 396 and 397 IPC. The appellants appealed, while the State appealed, seeking acquittal.

A man named Vithalbhai Kachrabhai Barot was accused of murdering a man who used to drive a Jeep. The case was registered at Gadh Police Station, Taluka Palanpur, Gujarat, and an investigation began. On March 2, 1990, a jeep was driven away at high speed near Charannagar, Ahmedabad. Four persons alighted from the jeep and tried to run away. One of them, Laxmansing (A1), was chased down and confessed to the murder and looting of the vehicle. The remaining four accused were apprehended, and a blood-stained knife was recovered.

The investigation concluded that the accused took the jeep taxi of Bharatbhai (deceased) on hire and murdered the victim and looted the jeep. Two separate charge sheets were filed against the accused, and both sets were committed to the Sessions Court, Banaskantha, at Palanpur. The accused pleaded not guilty and claimed to be tried. After hearing the arguments and appreciating the evidence, the trial court acquitted A1, A2, A3, and A5 in entirety. They were convicted for the offense punishable under Section 392 of the IPC and sentenced to 10 years’ rigorous imprisonment and a fine of Rs. 5,000/¬. The High Court reversed the acquittal and convicted them for the offenses punishable under Sections 302 and 396 IPC, sentenced them to life imprisonment, and maintained the fine and default sentence imposed by the trial court.

LEGAL PROVISIONS:

  • INDIAN PENAL CODE:
  • Section-34: Acts done by several persons in furtherance of common intention ; When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
  • Section-302: Punishment for murder; Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
  • Section_392: Punishment for Robbery; Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
  • Section-396: Dacoity with Murder; If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
  • Section-397: Robbery or dacoity, with attempt to cause death or grievous hurt; If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

ISSUES RAISED:

Two fundamental issues are presented for adjudication in these appeals:­

  • The scope of interference by High Court in an appeal challenging acquittal of the accused by the trial Court;
  • The standard of proof required to bring home charges in a case based purely on circumstantial evidence.

SUBMISSIONS ON BEHALF OF ACCUSED APPELLANTS:­

The learned counsel for accused appellants argue that the prosecution failed to prove the ownership or possession of a jeep bearing registration No. GJ-08-114 by the deceased. They also argue that the incriminating articles were never examined through the Forensic Sciences Laboratories (FSL), and only blood samples were sent for serological examination. The accused also argue that there is no reliable evidence establishing guilt beyond reasonable doubt, and that the convictions of A2, A3, and A5 are based solely on the confessional statement of A1, which is inadmissible in evidence under Sections 25 and 26 of the Indian Evidence Act, 1872. The accused contend that the High Court’s findings are based on conjectures and surmises, and they are entitled to an acquittal.

 

SUBMISSIONS ON BEHALF OF RESPONDENT­ STATE:­

Appearing for the respondent­ State vehemently opposed the submissions advanced by the learned counsel representing the accused­ appellants. She submitted that the High Court, after thorough and apropos appreciation of the substantial and convincing circumstantial evidence led by the prosecution, has recorded unimpeachable findings holding the accused guilty of the offences. She thus implored the Court to dismiss the appeals and affirm the judgment of the High Court.

COURTS ANALYSIS AND JUDGEMENT:

The court has analysed the impugned judgement and the evidence available on record, finding that the prosecution relied on circumstantial evidence, including disclosures, recoveries, and discoveries, to bring home the guilt of the accused. The most important recovery is attributed to A1, who was apprehended by PSI J.N. Chaudhary on 02nd March, 1990. He forwarded a report/communication dated 2nd March, 1990, wherein A1 confessed to the crime of murdering the jeep driver and looting the jeep and named the other accused persons as particeps criminis.

The court found that the confession of an accused in custody recorded by a police officer is inadmissible in evidence as the same would be hit by Section 25 of the Evidence Act. The prosecution did not even attempt to prove the confessional part of the communication . The court also found that the identity of A2, A3, and A5 as the assailants on the basis of the disclosure statement of A1 were primarily convicted on the basis of the recoveries of knives and clothes.

The court found that the recoveries were highly doubtful and tainted, as they did not lead to any conclusive circumstance in form of Serological report establishing the presence of the same blood group as that of the deceased. Furthermore, the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles, making the recoveries irrelevant.

The court has already doubted the veracity of the disclosure statement of A1 as recorded by and concluded that the evidentiary value of the confession of one co-accused against the other cannot be treated as substantive evidence.

The prosecution failed to provide reliable evidence to prove the accused’s guilt for murder under Section 302 IPC. The High Court did not record any finding that the trial court’s view was perverse or unfavorable. The judgment is based on conjectures and surmises, rather than substantive or reliable circumstantial evidence. The conviction for Section 392 is also based on the same set of inadmissible and unreliable links of circumstantial evidence.

CONCLUSION: ­

The High Court of Gujarat in Ahmedabad has quashed and set aside two previous judgements, Criminal Appeal No. 1012 of 1993 and Criminal Appeal No. 949 of 1994, which were based on the same record. The trial court’s judgment dated 21st August, 1993, convicting and sentencing the accused for offences punishable under Section 392 IPC, is also quashed and set aside. The appellants are acquitted of the charges and are directed to be set at liberty immediately, unless otherwise required.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY: ABHISHEK SINGH

Click here to view the full judgement: THAKORE UMEDSING NATHUSING V. STATE OF GUJARAT

0

Groundbreaking verdict- The High court of Gujarat overturns the extra royalty on newly found minerals

Blog, Gujarat High Court ,

Case title: GAMBHIRSINH RATHOD VS STATE OF GUJARAT

Case no: R/SPECIAL CIVIL APPLICATION NO. 882 of 2021

Order on: 04/05/2021

Qoram: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH WITH HONOURABLE MR. JUSTICE R.M.CHHAYA

 

Fact of the case:

Gambhirsinh Rathod was granted a lease for mining sand over 4.900 hectares in Surendranagar District, Gujarat, on 30.09.2009. The lease deed was executed on 03.11.2010, initially for 3 years. The lease was renewed twice, first on 03.11.2013 and then on 10.03.2016, each time for 3 years. In 2015, during the second lease period, Rathod found a new type of mineral called BLACKTRAP on the land. He informed the authorities and asked for permission to mine BLACKTRAP as well. The authorities took some time to respond but eventually, in 2018, they gave Rathod permission to mine BLACKTRAP. Rathod started mining BLACKTRAP in August 2018 and paid the required royalty (a kind of mining tax) for it, which the government accepted. In 2017, the state of Gujarat made new rules about mining and said that if new minerals were found, miners would have to pay extra charges. According to these rules, an additional fee of 80% of the regular royalty was imposed for newly discovered minerals. From August 2018 to June 2020, Rathod mined 576,000 MT of BLACKTRAP and paid Rs. 2.60 crores in royalties. On 21.07.2020 and 07.11.2020, the Geologist, Geology Assessment and Mining Department, Surendranagar, issued demand letters for an additional Rs. 2,07,11,613/- as per the Government Resolution. Rathod challenged the demand notices, Rule 15(1) of the Gujarat Mineral Concession Rules, 2017, and the Government Resolution. He argued that the new 2017 rules should not apply to his lease since his mining permissions and discoveries were under the older rules from 2010, arguing they were ultra vires, unconstitutional, and not applicable to his case.

Issues framed by court:

  1. Whether Reporters of Local Papers may be allowed to see the judgment ?
  2. To be referred to the Reporter or not ?
  3. Whether their Lordships wish to see the fair copy of the judgment ?
  4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

Legal provisions:

Article 226 of the Constitution of India: Allows individuals to file a petition in High Court to enforce fundamental rights and for other legal rights.

Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act): Section 15: Empowers state governments to make rules for minor minerals.

Gujarat Minor Mineral Concession Rules, 2017: a) Rule 15(1): Deals with new mineral discovery and levy of auction premium.

b) Rule 56(5): Specifies the payment of royalty when more than one minor mineral is mined in the same leasehold area.

 Contentions of Appellant:

In this case, Rathod (Appellant) contended that this rule is ultra vires under Section 15 of the MMDR Act, 1957, and violative of Article 14 of the Constitution of India, which guarantees equality before the law. The resolution imposing an additional 80% royalty on newly discovered minerals was challenged as being arbitrary and unfair. Rathod argued that the proviso to Rule 15(1) and the Government Resolution dated 18.10.2017 should not apply to his lease, which was granted and renewed under the 2010 Rules. The additional royalty demand was unjust as he was already paying the stipulated royalty for BLACKTRAP as per the existing lease agreement and the 2010 Rules. Rathod highlighted that his application to include BLACKTRAP in the lease was made in 2015, long before the 2017 Rules came into effect. Appellant argued that if the lease was not upheld, both he and the government would lose a lot of money. Also, it would be impractical for the government to manage two different mining leases on the same piece of land.

Contentions of Respondents:

The state (Respondent) defended the validity and applicability of Rule 15(1) and the Government Resolution dated 18.10.2017, asserting their power under Section 15 of the MMDR Act to regulate mineral concessions. The respondents argued that the lease deed executed on 02.08.2018 included a stipulation for the additional 80% royalty as per the Government Resolution. Rathod accepted this lease and therefore should comply with the extra fee. The respondent contended that the demand notices for the extra payment were legally correct according to the new 2017 rules and should be paid by Rathod.

 Court analysis & Judgement:

The court agreed with Rathod that Rule 15(1) of the 2017 Rules and the associated Government Resolution dated 18.10.2017 do not apply to his lease, which was governed by the 2010 Rules. The court recognized that Rathod’s application for inclusion of BLACKTRAP was made in 2015, under the 2010 Rules, and was pending when the 2017 Rules came into effect. The court noted that Rathod had been paying the stipulated royalty for BLACKTRAP since 2018, and this payment was accepted by the state. The additional 80% royalty demand was deemed unjust. The court emphasized that if the lease deed was not upheld, the state would lose substantial revenue already collected as royalty from Rathod. Managing two different lease deeds for the same plot of land was considered impractical. The court referred to Rule 56(5) to emphasize that Rathod was liable to pay royalty for each minor mineral mined, which he was already doing. The court allowed Rathod’s petition, quashing the demand notices dated 21.07.2020 and 07.11.2020. The court held that the proviso to Rule 15(1) of the 2017 Rules and the Government Resolution dated 18.10.2017 did not apply to Rathod’s case. The challenge to the ultra vires of Rule 15(1) was considered insignificant as the court concluded that the rule did not apply to the petitioner’s lease under the circumstances.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed By- Antara Ghosh

Click to view the full judgement

0

Review of the evidence and in-depth justifications for the case’s merits at the time of granting bail should be avoided because they could harm the accused. Gujarat High Court Grants bail

Blog , ,

TITLE Rajput (Barad) Ranjeetsinh Agarsinh Versus State of Gujarat

Decided On  September 21, 2023

16783 of 2023

CORAM: Hon’ble Justice Mr Hasmukh

INTRODUCTION-

The applicant accused has requested release on anticipatory bail in the event of his arrest in connection with the for the offences punishable under Sections 3007, 324, 323, 506 (2), 143, 147, 148, and 149 of the Penal Code, 1860, as well as Section 135(1) of the Gujarat Police Act through the present application under Section 438 of the Criminal Procedure Code, 1973.

FACTS OF THE CASE

The applicant claims that he has been wrongly implicated in the crime and that he has nothing to do with it. It is claimed that a dispute between neighbours led to a fight between women; however, the current applicant has been charged under section 149 of the IPC. The applicant was not even present at the scene of the incident, and he has not participated in the incident in any way or dealt any blows. Furthermore, the victim is no longer in danger, and there is nothing left to recover or learn about the current applicant, so a custodial interrogation is not required at this time. In addition, the applicant is accessible throughout the investigation and won’t resist justice. Given the foregoing, anticipatory bail may be granted to the applicant.

COURT ANALYSIS AND DECISION

Additional public prosecutor representing the respondent in court: Given the seriousness and nature of the offence, the state has opposed the granting of anticipatory bail. He claimed that the current applicant had assaulted the victim and violated section 149 of the IPC. The victim had injuries from a knife blow, and as the investigation was in its early stages, an incarcerated interrogation of the applicant was necessary. A thorough review of the evidence and in-depth justifications for the case’s merits at the time of granting bail should be avoided because they could harm the accused. The following factors have been taken into account.

(1) The applicant has not committed any overt acts;

 (2) The applicant has not struck the victim;

 (3) The victim is not in danger;

 (4) Nothing has been recovered or found from the applicant;

(5) The offence is not punishable by life in prison or the death penalty;

 

asked to reject the current application “PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

0

The trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail, Gujarat High Court Grants bail

Uncategorized

TITLE- Kirtalbhai Chaganbhai Rathva Versus State of Gujarat

Decided On September 21, 2023

15182 of 2023

INTRODUCTION-

The applicant accused has asked to be released on anticipatory bail in the event that he is arrested in connection with offences punishable under Sections 65(e), 65(a), and 116(b) of the Prohibition Act through the current application made pursuant to Section 438 of the Criminal Procedure Code, 1973.

FACTS OF THE CASE

The applicant claims that they were wrongfully implicated in the crime. Nothing was found in the applicant’s conscious possession. The muddamal item is priced at Rs. 12960. The applicant doesn’t have any prior criminal history. He further argued that because of the nature of the allegations, a custodial interrogation is not required at this time. In addition, the applicant is accessible throughout the investigation and won’t resist justice. Given the foregoing, anticipatory bail may be granted to the applicant.

COURT ANALYSIS AND DECISION

The state has opposed the granting of anticipatory bail, claiming that since the applicant’s home was where the illegal substance, muddamal, was discovered, the application cannot be taken into consideration.

It is equally required of the Court to exercise its discretion judiciously, cautiously, and strictly in compliance with the fundamental principles outlined in a large number of decisions made by the Hon’ble Apex Court on the subject after hearing the learned advocate for the parties and reading the investigation papers. This would be sufficient to hold the defendant in judicial custody and consider the prosecution’s request for a police remand. It is made clear that the applicant, even if remanded to police custody, shall be released right away after the allotted time has passed, subject to the other terms of this anticipatory bail order.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

Click here to view judgment

 

0

No active participation of the present applicant has been noticed as he has sublet the contract against the condition of contract, Gujarat High Court Grants bail

Uncategorized

 

TITLE Hathiyabhai Dudhabhai Khunti Versus State of Gujarat

Decided On  September 21, 2023

6544 of 2023

CORAM: Hon’ble Justice Mr Hasmukh

INTRODUCTION-

The applicant accused has asked to be released on anticipatory bail in the current application under Section 438 of the Criminal Procedure Code, 1973, in the event that he is arrested in relation to the offences punishable under Sections 3 and 7 of the Essential Commodities Act as well as Sections 406, 409, 120(b), 465, 467, and 471 of the Penal Code, 1860.

FACTS OF THE CASE

The applicant claims that because of the nature of the allegations, a custodial interrogation is not required at this time. In addition, the applicant is accessible throughout the investigation and won’t resist justice. A knowledgeable attorney for the applicant claims that the current applicant has been wrongfully accused of the crime. He is not responsible for the crime.

knowledgeable advocate has argued that the current applicant is an elderly man who has a contract for door-to-door delivery. He hasn’t broken any laws because the current applicant sublet the contract to a man named Rahul, who has since been taken into custody. It is asserted that there has been no collusion, abetting, or connivance with the accused. According to the argument, the only charge brought against the current applicant is that he had contact with a man named Asvin, who is accused of stealing the stock. It is further argued that nothing about the accused needs to be retrieved or found out.

COURT ANALYSIS AND DECISION

On behalf of the respondent,  additional public prosecutor testified that anticipatory bail should not be granted due to the seriousness and nature of the crime. According to an expert APP, the current applicant is complicit in the current crime and the elaborate conspiracy that was hatched. According to the argument, essential commodities like wheat, rice, sugar, grammes, tuvar pulse, and groundnut oil worth Rs. 99,77,551/- are syphoned, and in this regard, an offence is registered following an investigation. It appears that the go-down keeper, Supervisor, and transporter were all complicit in this crime. The applicant is accused of conspiring with others after it is claimed that they stole the aforementioned sum and falsified the stock register and gate passes. It is well-established that among other circumstances, the factors to be taken into account when deciding whether to grant bail are (i) whether there is any prima facie or reasonable basis to believe that the accused had committed the crime; (ii) the nature and seriousness of the accusation; (iii) the severity of the punishment in the event of a conviction; (iv) the risk that the accused will flee or turn against them if granted bail; and (v) character, behaviour, means, and position

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

 

Click here to view judgment

1 2 3 … 19